Feehan v. Hong-Suh Park

248 A.D.2d 430, 668 N.Y.S.2d 946, 1998 N.Y. App. Div. LEXIS 2323

Opinion

—In an action to recover damages for personal injuries, the plaintiff Shirley Feehan appeals from an order of the Supreme Court, Queens County (Milano, J.), dated January 23, 1997, which denied her motion for summary judgment dismissing the defendants’ counterclaim.

Ordered that the order is reversed, on the law, with costs, the plaintiffs motion is granted, and the defendants’ counterclaim is dismissed.

It is undisputed that the defendants’ vehicle backed into the appellant’s vehicle which was parked in a parking lot. However, contrary to the defendants’ contention and the Supreme Court’s conclusion, we find that there is insufficient evidence in the record to raise an issue of fact whether the appellant was parked in an illegal location. Moreover, even if the appellant were parked in an illegal location, this merely would have furnished the condition for the occurrence of the accident. It would not have been one of its causes (see, Esposito v Rea, 243 AD2d 536; Dunlap v City of New York, 186 AD2d 782; Williams v Envelope Tr. Corp., 186 AD2d 797). Thus, the defendants’ counterclaim asserting that the appellant was contributorily negligent should have been dismissed.

Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.